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NLRB Rejects Common Practices; What Is HR to Do?

Members may download one copy of our sample forms and templates for your personal use within your organization. Please note that all such forms and policies should be reviewed by your legal counsel for compliance with applicable law, and should be modified to suit your organization’s culture, industry, and practices. Neither members nor non-members may reproduce such samples in any other way (e.g., to republish in a book or use for a commercial purpose) without SHRM’s permission. To request permission for specific items, click on the “reuse permissions” button on the page where you find the item.

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LAS
VEGAS—“Everyone has always done it that way” isn’t a viable defense to
an unfair labor practices charge, at least not with the current National
Labor Relations Board (NLRB), according to Patty Wise, an attorney with
Niehaus Wise & Kalas in Toledo, Ohio, and member of the Society for
Human Resource Management (SHRM) Labor Relations Special Expertise
Panel.

Routine employer practices—from at-will employment policies, to
confidentiality provisions in investigations and bans on defamatory
comments on social media—all have been rejected by the NLRB as unlawful,
she said at a June 28, 2015, preconference workshop at the SHRM 2015
Annual Conference & Exposition.

At-Will Policies

In 2012, the board started scrutinizing at-will policies, Wise noted.
The acting general counsel (AGC) for the board found that the language
in them frequently looks too broad.

Employers often use standard language in handbooks for at-will
policies, saying that no oral or written statements except by a chief
executive officer altered the policies.
Employees might conclude from this language that they could not change
their at-will status even if they voted for a union, which could have a
chilling effect, according to the AGC. Workers might reason that they
couldn’t vote for a union.

By 2014, the board still was scrutinizing at-will policies closely.
It said that it believed the policies infringed on protected, concerted
activity, Wise said, but management attorneys fought back.

“Right now, we can’t tell who wins” on the board’s position as the
disagreement winds its way through litigation. In the meantime, while
employers are left in limbo, Wise asked, what are they to do?

Keep the at-will language, she recommended, saying that it’s
essential protection for when supervisors promise employees that they
can stay in a job forever. “Do not change or weaken the policies,” she
said, adding that the NLRB seems to have backed off its stance on
at-will policies.

Confidentiality Provisions

Another common practice the board has challenged recently is HR’s
routine practice, when conducting internal investigations, of asking the
complaining employee and all witnesses to maintain confidentiality.

Wise noted that the board has ruled that seeking confidentiality is
an illegal restriction on the rights of employees to discuss workplace
issues among themselves, even when confidentiality is just a request and
not a mandatory rule.

According to the board, in order for employers to request
confidentiality, there have to be specific concerns about a lack of
confidentiality, not just a generalized concern.

The board has listed the following as legitimate specific concerns:

Witnesses need protection.

Evidence is in danger of being destroyed.

Testimony is in danger of being fabricated.

A potential cover-up needs to be prevented.

“Keep these four handy, and apply any others,” Wise said, noting that
the Equal Employment Opportunity Commission (EEOC) requires
investigators of sexual harassment complaints to keep their
investigations confidential. Try to comply with both the NLRB and the
EEOC in this area, she recommended.

Michael VanDervort, executive director with CUE Inc. in Clayton, Ga.,
cautioned that the NLRB sometimes will ask for an employer’s handbook,
even when it is not part of an unfair labor practices charge, and “jump
in and tear the handbook apart.”

Defamatory Comments

The NLRB also has struck down a Costco prohibition on online comments
“that damage the company, defame any individual or damage any person’s
reputation, or violate the policies” in the handbook. Even though the
language used was fairly common, the board felt the defamation wording
was overly broad.

Policy language that the board has said would be permitted includes policy language prohibiting:

Malicious, abusive or unlawful behavior.

Profanity.

Any discourse against other employees which is injurious, offensive, threatening, intimidating, coercing or interfering.

Sabotage.

Sexual or racial harassment.

Wise recommended that employers try to identify what their goals are
with social media policies. “Don’t try and stop employees from
trash-talking,” she said. It won’t work and will create a culture of
suspicion and surveillance, she remarked. “Employees have every right to
be as negative as all get out,” she added.

Employers should also give thought too, Wise said, to whether they
want to have a stand-alone social media policy. Rather than having
social media in neon lights, aspects of social media might be
incorporated into other policies, such as anti-harassment policies, she
noted.

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.

Members may download one copy of our sample forms and templates for your personal use within your organization. Please note that all such forms and policies should be reviewed by your legal counsel for compliance with applicable law, and should be modified to suit your organization’s culture, industry, and practices. Neither members nor non-members may reproduce such samples in any other way (e.g., to republish in a book or use for a commercial purpose) without SHRM’s permission. To request permission for specific items, click on the “reuse permissions” button on the page where you find the item.